Saturday, May 22, 2021

Oral or written declarations of heads of State, heads of government and ministers for foreign affairs can be the basis of international accountability or liability of that state or the state's government even in the absence of any treaty or bilateral/multilateral agreement regarding the pronouncements. This is the “unilateral binding declaration” doctrine.

Dean Mel Sta. Maria:

A counterproductive Duterte utterance

China must be ecstatic. President Duterte, the head of state of the Republic of the Philippine publicly declared: "Nag file sila ng kaso, nanalo tayo. 'Yang papel, sa totoong buhay, between nations, 'yang papel, wala 'yan," …."Pinursue ko, walang nangyari. Actually, sa usapang bugoy, sabihin ko sa 'yo, 'Bigay mo sakin? Putangina papel lang 'yan. Itatapon ko 'yan sa waste basket.”

When a President makes a statement concerning international affairs, it can be taken as his country’s foreign policy declaration. And, in international law, well-entrenched is the rule that the oral or written declarations of heads of State, heads of government and ministers for foreign affairs can be the basis of international accountability or liability of that state or the state's government even in the absence of any treaty or bilateral/multilateral agreement regarding the pronouncements. This is the “unilateral binding declaration” doctrine. China might utilize that “waste basket” statement to support its claim against the Philippines that the West Philippine Sea decision should be discarded.

A number of International Court of Justice (ICJ) decisions held countries answerable or estopped on the basis of unilateral declarations. This is why oral and written statements of Presidents or their subalterns must be well-thought of ------ the wordings cautiously selected to avoid great prejudice to their own country.

For President Duterte therefore to publicly declare that the West Philippine Sea (WPS) decision is throwable does not do the Philippines any benefit at all. On the other hand, China can use it to assert that the WPS decision has become worthless as the president’s public statement is an open declaration against the interest of the Philippines which, in the ordinary rules of evidence, may have some measure of consideration.

It is necessary that President Duterte personally make a categorical clarification that he did not mean the “waste basket” statement. The Department of Foreign Affairs announcement does not have the same gravitas if made by the head of state himself.

Also, when some of President Duterte’s cabinet members like Defense Secretary Lorenzana and Foreign Affairs Secretary Locsin and allies like Senator Pacquiao publicly made statements opposite President Duterte’s tone, it highlights how disturbing the off-the-cuff opinions of the President were.

The present mess in the WPS has been greatly enhanced by the President Duterte's pivot toward China. In October 2016 in China, in front of the members of the Chinese and Filipino business community, President Duterte declared that “in this venue, your honors, in this venue, I announce my separation from the United States.” He added “Both in military, not maybe social, but economics also. America has lost.” Also , he declared: “I’ve realigned myself in your ideological flow and maybe I will also go to Russia to talk to Putin and tell him that there are three of us against the world - China, Philippines and Russia. It’s the only way.”

President Duterte’s thinking appears to be this: the Philippine pivot toward China necessarily means moving away from the US -- a clearly antiquated mindset belonging to a by-gone era. It exposes President Duterte’s lack of knowledge or ignorance of the present dynamics in world affairs.

The cold war had long ended. The world is no longer divided between the United States of America and Russia/China in terms of influence ideologically, economically and politically. Even communist Russia and China now embrace a capitalistic attitude in their busineses.

Likewise, the rise of other countries either individually or collectively has gained significant global relevance: the powerful G7 block, the European Union, the Asean, Australia, New Zealand, Japan, India, even South Korea ( economically), the oil-rich countries of the Middle East such as Saudi Arabia, Iran, Qatar. Even decisions of world and regional organizations such as the OPEC and the World Bank affect world prices.

Let China and US compete against each other. Let the Philippines’ economic and military treaties with other countries be maintained. Alliances are part of international relations and are not bad. But President Duterte need not put the country in the armpit of China, making pronouncements emboldening China to occupy areas within the Philippines’ maritime preferential zone.

Lamentably, President Duterte favored China despite its continued aggression blatantly disrespecting the Philippines’ maritime rights. So China, after losing a landmark international case, took advantage of this earnest show of Duterte favor and weakness and modified its strategy.

While continuing its illegal ways, China moved to beat the Philippines "legally" with a scheme designed to even make the President of the Philippines participate, wittingly or unwittingly, in its ploy.

Thus, whereas before, their concocted 9-dash-line boundary was declared baseless under international law, now they might assert that its territorial and maritime claims are “legal” based on the doctrine of estoppel and acquiescence exhibited by the Philippine government as manifested by President Duterte’s voluntary public utterances and omissions. That doctrine, as far as China may be concerned, could be within the "generally accepted principle of law recognized by civilized nation" which, in turn, is one of the sources of international law.

Also, whereas before, China blatantly island-grabbed , now the modality is a calculated series of actions where even the Philippine president declared his helplessness, tolerance and acquiescence to the de facto situation of China’s dominance in the West Philippine Sea, to the point of President Duterte admitting China is “in possession of the property” to the great prejudice of the Philippines.

And that strategy was patiently pursued. The latest result was this uncalled for declaration by President Duterte himself to the effect that the Hague decision was disposable. The President said: “Putang inang papel iyan.Itatapon ko 'yan sa waste basket.”

With the kind of statements he has been spewing, the Philippines might lose a number of islands and its maritime rights within its 200-mile exclusive economic zone.

If that happens, President Duterte must be held accountable for such a terrible tragedy grossly and unimaginably prejudicial to the Filipino nation.

Nevertheless, notwithstanding the President Duterte’s irresponsible statements, the Philippine position on the West Philippine Sea is still supremely strong. This is even supported by major countries in the world. China may attempt to use President Duterte’s utterances against the Philippines, but its 9-dash-line boundary is just utterly absurd and without historical and legal basis. That facticity will never change. And the Philippines has proven that extremely well, thanks to the legal team assembled by former Ambassador Albert del Rosario to fight for our maritime rights at the Hague.

But still circumspection is the order of the day. During his remaining months in office, President Duterte must be careful. Foreign policy cannot be based on his whims and caprice. He cannot equate his emotional feelings with public interest. Personal opinions and knee-jerk reactions have no place in formulating a foreign policy declaration.

It is better for him to read a well-prepared statement sufficiently nuanced by the Philippines’ stand on the issue and the tenets of international law rather than just spontaneously jibber-jabber something about it. The president simply lacks that depth in international relations.

As a starter, President Duterte himself must expressly, boldly and with a sense of utmost urgency, assert the Philippines’ maritime rights and frontally call on China to abide by the rule of international law.